THORNDON QUAY COLLECTIVE INC v WELLINGTON CITY COUNCIL [2022] NZHC 2356

THORNDON QUAY COLLECTIVE INC v WELLINGTON CITY COUNCIL [2022] NZHC 2356 [14September 2022]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2022-485-000003[2022] NZHC 2356BETWEEN THORNDON QUAY COLLECTIVE INCApplicantAND WELLINGTON CITY COUNCILRespondentHearing: 25-26 July 2022Appearances: R A Kirkness, R Georgiou and J A Tocher for the ApplicantN M H Whittington for the RespondentJudgment: 14 September 2022JUDGMENT OF GENDALL JTable of contentsIntroduction [1]Background [6]The parties to this proceeding [6]LGWM [8]The Council's traffic resolution process [14]Grounds of review [24]Relief sought [32]Principles of judicial review [37]Error of law [40]Unreasonableness [43]Consultation [49]Review of a local authority's decision-making [53]Decision-making process requirements under the LGA [58]Analysis — Did the Council follow the correct legal process in making its decisions in question? [82]Issue one: reasonably practicable alternatives — did the Council fail to identify and assess allreasonably practicable alternatives for the achievement of the safety objective of its decision? [84]The objective of the Decision [86]What the Council did [90]Did the Council seek to identify all reasonably practicable alternatives and assess the options interms of their advantages and disadvantages? [94]Conclusion [106]Issue two: consultation — did the Council fail to consult with businesses on two key matters? [108]Issue three: discretion under s 79 — did the Council fail properly to exercise its judgment pursuantto s 79 of the LGA? [124]Issue four: mistake of fact — did the Council proceed on material errors of fact? [144]Alleged mistakes of fact [144]Law on mistake of fact [148]First alleged mistake of fact — no adverse social or economic impact of reducing the number ofparks [151]Second alleged mistake of fact — comparative safety for cyclists of angled and parallel parks [172]Issue five: relief [191]Result [202]Costs [204]Introduction[1] This case concerns a decision of the respondent, the Wellington City Council(the Council) to reconfigure the parking arrangement on Thorndon Quay, a keytransport route into and out of Wellington City, from mainly angled parks, with someparallel parks at various points along the road, to all parallel parks (the Decision).[2] At the heart of this case, the Council says, is an issue of safety for cycliststravelling along Thorndon Quay. In 2020, the Council received an audit report fromWaka Kotahi NZ Transport Agency (Waka Kotahi) highlighting the issue and urgingthe Council to act to fix the situation. The Council proposed a traffic resolution whichwould convert all angled parks to parallel parks. Following a consultation process, inJune 2021 the Council voted in favour of the resolution. This is the Decision at issuein these proceedings. In September 2021, all parks were then converted toparallel parks.[3] The applicant, the Thorndon Quay Collective Inc, says the Decision wasflawed. It maintains the Decision and this judicial review concern matters of criticalimportance to the business community on Thorndon Quay. In making the Decision,the applicant maintains the Council failed to follow the correct decision-makingprocedures under the Local Government Act 2002 (the LGA). The conversion of theparks to parallel parks has had the effect of reducing the number of parks available inthe key business areas of Thorndon Quay by between 44 and 47 per cent. Thatreduction in parks, the applicant contends, is having a detrimental impact on thebusinesses of its members. Evidence of that impact is provided to the Court from sixbusiness owners.[4] The applicant therefore challenges the Council's decision in the followingrespects, alleging that the Council:(a) failed to identify and assess all reasonably practicable alternatives forthe achievement of the safety objective of its decision, as required unders 77 of the LGA;(b) in breach of the LGA, failed to consult with businesses on two keymatters, namely:(i) an unstated objective that the Council subsequently purportedto rely on in making its decision; and(ii) an internal analysis of alternative options conducted by Councilofficers;(c) failed properly to exercise its judgment pursuant to s 79 of the LGA;and(d) committed material errors of fact in relation to two key assumptionsunderpinning the Council's decision, namely:(i) that the reduction in the number of parks would not have anadverse impact on businesses; and(ii) that parallel parks would be safer for cyclists travelling alongThorndon Quay than the existing angled parks.[5] The applicant seeks a declaration that the Decision was unlawful and invalid,an order quashing the Decision, and an order requiring the respondent Council toreturn all carparks along Thorndon Quay to their configuration before the Decision.The fifth issue in these proceedings concerns whether, as the Council says, reliefwould be futile because of other changes proposed by a joint local initiative, Let's GetWellington Moving (LGWM). The applicant says this is wrong as it seeks to pre-emptdecisions that the Council has yet to make.BackgroundThe parties to this proceeding[6] The applicant is the Thorndon Quay Collective Inc (TQC), an incorporatedsociety formed in June 2021 to represent the interests of the business community onThorndon Quay in response to the LGWM project for Thorndon Quay/Hutt Road.1[7] The respondent, the Council, is a territorial authority constituted under cl 100of the Local Government (Wellington Region) Reorganisation Order 1989 and listedin pt 2 of sch 2 of the LGA.LGWM[8] Though not itself a party to this proceeding, the actions of LGWM are highlyrelevant background to the Council's Decision giving rise to these proceedings.[9] LGWM is a joint initiative between three agencies, namely the Council, theGreater Wellington Regional Council (the GWRC) and Waka Kotahi. The objectiveof LGWM as set out in its current relationship and funding agreement is to develop atransport system for Wellington that:(a) enhances the liveability of the central city;(b) provides more efficient and reliable access for all users;(c) reduces reliance on private vehicle travel;(d) improves safety for all users; and(e) is adaptable to disruptions and future uncertainty.[10] In May 2019, the Government approved an indicative package of transportreforms by LGWM. LGWM then commenced consultation on a Thorndon Quay/HuttRoad project in May and June 2020.1 Affidavit of Paul Robinson, 4 May 2022, at [3].[11] LGWM presented the option of converting the angled parks in Thorndon Quayto parallel parks in an engagement report released in July 2020 (the EngagementReport).2 LGWM described this as "one of a range of possible options for transportreform that were under consideration as part of the LGWM programme".[12] On 17 September 2020, LGWM released a parking impact assessment report(the Parking Impact Assessment), which described itself as "an assessment of thepotential impacts of changes to parking management along Thorndon Quay and HuttRoad".3[13] On 4 November 2020, LGM released a report which narrowed down a long listof options for the Thorndon Quay/Hutt Road project to a short list of options (intendedfor public consultation). It did so by assessing the options against five investmentobjectives using a multi-criteria assessment (the Long List Report).4 None of theshort-listed options retained angled parking.The Council's traffic resolution process[14] Around the same time LGWM was considering changes to ThorndonQuay/Hutt Road, Waka Kotahi prepared an investment audit report for the Council, inwhich it commented on the safety for cyclists of the angled parks on Thorndon Quay.5[15] A public petition was also launched on 22 December 2020 asking the Councilto fix what was said to be the unsafe situation for cyclists travelling along ThorndonQuay with little room to ride.[16] The Council decided it could not wait for the work being done by LGWM onThorndon Quay/Hutt Road to occur and accordingly it concluded that it needed to dosomething about the problem of cyclist safety for itself. It proposed a traffic resolution2 Let's Get Wellington Moving Thorndon Quay and Hutt Road: Engagement Report (July 2020).3 Let's Get Wellington Moving Parking Impact Assessment: Thorndon Quay Hutt Road (17September 2020) [Parking Impact Assessment Report] at 3.4 Let's Get Wellington Moving Thorndon Quay Hutt Road: Long List to Short List Options Report(4 November 2020).5 Waka Kotahi NZ Transport Agency Investment Audit Report: Technical and Procedural Audits ofWellington City Council (30 July 2020) [2020 Audit Report] at 19.which would make several road layout changes it thought would improve the issue,including changing the angled parking to parallel parking (the traffic resolution).[17] On 14 April 2021, the Council's Regulatory Process Committee passed aresolution noting that Council officers proposed to time the traffic resolution processto coincide with consultation LGWM was running in relation to changes toThorndon Quay. This was to begin 10 May 2021.6 However, the resolution noted that,should the LGWM consultation be delayed, their own traffic resolution process wouldcontinue regardless.[18] On 11 May 2021, the Council released a consultation document on the trafficresolution (the Consultation Paper). This proposed to convert all angled parks onThorndon Quay to parallel parks.7 Thus the Council's consultation and theconsultation by LGWM on its Thorndon Quay/Hutt Road project took place, as oneCouncil witness describes it, as "two processes happening in parallel".8 Theseconsultations were, however, distinct and relied on separate consultation documents.In particular, the Council at the time also released another document relating to ananalysis of crashes and parking (the Parking Analysis Paper).9[19] Consultation on the traffic resolution was open for 20 working days, that isuntil 8 June 2021. The applicant requested a two-week extension. An extension wasgranted but only for two days. During the consultation period, "representatives" fromthe applicant met twice with representatives from LGWM. (I leave on one side herethe fact that, by its own account, the applicant only came into existence the followingmonth, June 2021). Members of the applicant, it appears, said that these meetingswere variously difficult, confrontational and unhelpful. The Council responds that,apart from opposition from businesses who now form part of the TQC, the publicresponse was supportive of the proposed change.6 Minutes of Regulatory Process Committee, 14 April 2021.7 Wellington City Council TR53-21 Thorndon Quay Pipitea - Convert angled parking to parallelparking (11 May 2021).8 Affidavit of Sebastian Bishop, 13 June 2022, at [2.7].9 Wellington City Council Thorndon Quay Crashes & Parking Analysis (11 May 2021) [ParkingAnalysis Paper].[20] The Council, it appears, has delegated responsibility for making decisions on"significant traffic resolutions" to the Council's Planning and Environment Committee(the Committee). The Committee comprises all elected members of the Council. TheCommittee received a Council officer's report on the traffic resolution summarisingthe submissions that had been received, including the submission made by theapplicant. At a meeting held on 22 June 2021, the Committee heard oral submissionson the issue from the applicant and from Cycling Action Network, each for 30 minutes.Then, on 24 June 2021, the Committee met to consider the traffic resolution. At thatmeeting, the Committee passed the traffic resolution by a majority vote of 10:5 (theDecision). As I note above at [2], this is the Decision now at issue in theseproceedings.[21] The Council then implemented the Decision and converted all the parks onThorndon Quay to parallel parks over a period of two weeks in September 2021.[22] Thereafter, the applicant sought first to engage with the Council at a politicallevel. It collected 1,456 signatures for a petition asking the Council to conduct anindependent review of the social and economic impact of the Decision. On15 December 2021 the Council rejected the applicant's petition and the applicant filedthese proceedings for judicial review on 23 December 2021.[23] The Council advises the Court that since this proceeding commenced, LGWMhas now determined the concept road design for Thorndon Quay/Hutt Road, and hasconfirmed funding for it. Detailed design of the concept I am told is now underway.The new road layout, however, includes a bi-directional cycleway, a dedicated buslane towards the city, footpath and streetscape improvements, and on-street parallelparking. The Council says the concept does not include any angled parking. Theconstruction works, according to the Council, are expected to commence as early asMarch 2023.Grounds of review[24] As noted above, the applicant TQC challenges the Council's decision in fourrespects. It does so under three heads of review.10[25] The first ground of review concerns the Council's failure to identify and assessall reasonably practicable options. The TQC says the Decision was legally flawedbecause the Council failed to, or failed adequately to, comply with the requirementsof the LGA. Under s 77 of the LGA, the Council has a duty when making decisionsto seek to identify all reasonably practicable options for the achievement of theobjective of the decision and to assess the options in terms of their advantages anddisadvantages. The applicant says that neither the Council, nor the Committee, towhich it delegated responsibility for making the Decision, complied with theserequirements.[26] TQC says the stated objective of the Decision was to improve safety forcyclists travelling along Thorndon Quay by reducing conflicts between cyclists andmotorists using the angled car parks. However, TQC maintains that, when making theDecision, the Council only considered angled parking conversion as a means forachieving that stated objective and did not seek to identify alternative options forachieving this. The TQC contends the Council did not assess the reasonableness ofany alternative options, including their advantages and disadvantages.[27] The TQC says the Council did not assess angled parking conversion in termsof its advantages and disadvantages, including:(a) the evidence that it would improve road safety for cyclists and otherroad users, and reduce social costs related to injuries;(b) the social and economic impacts of the change, including thedisproportionate burden on members of the applicant; and10 The reason for the difference in numbering appears to be that the first ground of reviewencompasses the applicant's challenge to the Council's exercise of discretion under s 79 of theLGA, which is also described by the parties as a discrete issue and which I therefore assess as suchas a discrete third main issue in this judgment.(c) new safety hazards it would introduce for cyclists and other road users,including hazards resulting from the parallel parks and from the newroad configuration.[28] The TQC also says the Council failed to comply with the requirements of theLGA by: failing to make a judgment under s 79 of the LGA in relation to the Decision;failing to have sufficient information lawfully to make such a judgment; or,alternatively, making a judgment under s 79 of the LGA that was not in proportion tothe significance of the Decision and was therefore unlawful.[29] The second ground of review alleges that the Council failed to consider viewsand preferences of persons affected by the Decision in accordance with the LGA. TheTQC contends the Council has a duty under the LGA to give consideration to the viewsand preferences of persons likely to be affected by, or who have an interest in, itsdecisions. The TQC maintains the Decision was invalid and unlawful because theCouncil failed to, or failed adequately to, comply with its duty, including by failing to:(a) make publicly available an analysis of the reasonably practicableoptions that Council officers had identified;(b) provide relevant data in a timely manner after it had been requested;(c) identify the nature of the perceived safety risk to cyclists during theconsultation period;(d) allow a reasonable time for preparation of an empirical submission;(e) maintain an open mind during consultation; and(f) have regard to the significant likely impact of angled parkingconversion from the perspective of TQC members.[30] The third ground of review relates to the Council's alleged failure to accuratelyassess the social and economic impacts of the Decision. The applicant says theDecision was legally flawed. This was because it was based on material errors,including reliance on incorrect conclusions, improper comparisons and incorrectanalysis.[31] I note that pre-determination by the Council was not pleaded at all. While theintentions and actions of Waka Kotahi and LGWM were relevant and important, therewas no suggestion made by the TQC that the Decision of the Council waspre-determined in any way.Relief sought[32] The TQC seeks the following relief:(a) a declaration that the Decision was unlawful and invalid;(b) an order quashing the Decision;(c) an order requiring the Council to return all carparks along ThorndonQuay to their configuration before the Decision;(d) such other relief as the Court thinks just; and(e) costs.[33] All parties accept that, in the event the Court finds a material error has beenmade, a declaration to that effect (as described in [32](a) above) would be appropriate.[34] However, the Council also raises as an affirmative defence that even if theCourt finds that the Decision was flawed, the Court should exercise its remedialdiscretion against making the other orders sought. Specifically, the Council contendsthe Court in any event should exercise its discretion against quashing the Council'sdecision, or alternatively, if at all, it should do so only on a prospective basis, giventhe effect quashing the Decision would have on parking revenue. This is on the basistoo that any such remedy ordered by the Court would be futile because, by the timethe Court came to consider the application, the Council and LGWM would havedetermined the future layout of Thorndon Quay. The Council submits that at the timethe Council made the Decision, it knew the effect of the Decision would be interimuntil the implementation of the Thorndon Quay/Hutt Road project.[35] The Council suggests there are two other factors, in addition to foregoneparking revenue, in favour of the Court exercising its discretion in this way. First, theCouncil says that given the evidence from two road safety experts that the currentconfiguration is safer for cyclists, their safety should not be put at unnecessary risk byreverting to the former configuration in the interim. Second, the Council maintainsthat quashing the decision will have other effects, such as requiring furtherconsultation and data evaluation and having to refund revenue collected since theDecision was implemented. This, it says, would cause significant administrativeinconvenience and waste.[36] In response, TQC maintains these concerns are not sufficient to decline relieffor an unlawful exercise of public power. It contends the courts do not generallydecline relief simply because it is perceived to be futile, and further, that if it wereotherwise, this would undermine the rule of law requiring a decision-maker to respondto a finding that it acted unlawfully, even if the outcome is ultimately the same.Principles of judicial review[37] I turn now to consider the principles by which this judicial review proceedingis to be addressed.[38] It is well-established that in a judicial review the Court does not review themerits of the conclusion reached by a decision-maker. The focus is on the process bywhich the conclusion was reached. As Cooke J said in Patterson v District Court, HuttValley:11 In every judicial review case the Court's role is to review whether adecision is made in accordance with law. In all cases it does so in the samedispassionate way [39] In New Zealand Forest Owners Association Inc v Wairoa District Council,Grice J noted that the courts have approached judicial review in New Zealand "bearing11 Patterson v District Court, Hutt Valley [2020] NZHC 259 at [16].in mind that it is a supervisory jurisdiction to ensure that powers are exercised inaccordance with law."12 Along similar lines, in Coromandel Watchdog of Hauraki(Inc) v Minister of Finance, Simon France J commented that judicial review wasintended to be a comparatively simple process of "testing that public powers have beenexercised after a fair process, and in a manner, which is both lawful and reasonable."13The limitations of those powers are then to be ascertained from the statute or otherregulation which bestows them, which also gives the extent of the decision-makingfreedom provided.14Error of law[40] The Supreme Court has described an error of law in the following way:15[26] An ultimate conclusion of a fact-finding body can sometimes be soinsupportable — so clearly untenable — as to amount to an error of law:proper application of the law requires a different answer [41] According to the Supreme Court there, that will be the position only in the rarecase where there has been a state of affairs in which:16(a) "there is no evidence to support the determination"; or(b) "the evidence is inconsistent with and contradictory of thedetermination"; or(c) "the true and only reasonable conclusion contradicts thedetermination".[42] Case law also puts the test of an error of law as whether the finding was "open"to the authority,17 or otherwise in terms of unreasonableness. In Hu v Immigration and12 New Zealand Forest Owners Association Inc v Wairoa District Council [2022] NZHC 761 at [19].13 Coromandel Watchdog of Hauraki (Inc) v Minister of Finance [2020] NZHC 1012 at [13], citingBNZ Investments Ltd v Commissioner of Inland Revenue HC Te Whanganui-a-Tara | WellingtonCIV-2006-485-697, 7 December 2006 at [15].14 Patterson v District Court, Hutt Valley, above n 11, at [14]–[15].15 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721.16 At [26], citing Edwards v Bairstow [1956] AC 14 at 36.17 Lewis v Wilson and Horton Ltd [2000] 3 NZLR 546 (CA).Protection Tribunal, Palmer J stated in relation to an error of law in a judicial reviewcontext:18Where a decision is so insupportable or untenable that proper application ofthe law requires a different answer, it is unlawful because it is unreasonable.That may involve the adequacy of the evidential foundation of a decision orthe chain of logical reasoning in the application of the law to the facts.Unremarkably, unreasonableness, also termed irrationality, is to be found inthe reasoning supporting a public decision.Unreasonableness[43] In Aorangi School Board of Trustees v Ministry of Education, French Jreiterated the well-known test for unreasonableness in public law terms as follows:19[100] In considering the reasonableness of a decision, the orthodox test isthat the applicant must show the decision was so unreasonable no rationaldecision maker could have come to it [44] Unreasonableness arises only where a decision maker comes to a decision thatno reasonable decision maker could have reached, a decision which lies "outside thelimits of reason".20 As has been noted elsewhere, it is clearly a high threshold tomeet.21[45] For the ultimate decision of a local authority to be invalidated as"unreasonable", it must be so "perverse", "absurd" or "outrageous in [its] defiance oflogic" that Parliament "could not have contemplated such decisions being made by anelected council."22 In Wellington City Council v Woolworths New Zealand Ltd (No 2)the High Court had granted relief to the applicants, making a declaration that theCouncil acted unreasonably and unfairly towards them.23 However, it was commonground that the Council had: weighed all the relevant considerations; not had regardto irrelevant considerations; consulted adequately; followed all the appropriatestatutory procedures and processes; and made its decisions in good faith and in what18 Hu v Immigration and Protection Tribunal [2017] NZHC 41, [2017] NZAR 508 at [2].19 Aorangi School Board of Trustees v Ministry of Education [2010] NZAR 132 (HC).20 Criminal Bar Association of NZ Inc v Attorney-General [2013] NZCA 176 at [136].21 The Ink Patch Money Transfer Ltd v Reserve Bank of New Zealand [2022] NZHC 1340 at [38].22 Wellington City Council v Woolworths New Zealand Ltd (No 2) [1996] 2 NZLR 537 (CA) at 552.23 At 539.it judged to be the best interests of the city and its ratepayers.24 On appeal, accordingly,the Court of Appeal allowed the appeal.[46] Though dealing with a discrete issue with other prescriptive requirements, thedecisions of local authorities have come under significant review in the context ofrating decisions. In Waitakere City Council v Lovelock, the Court of Appeal confirmedthe approach of the Court in Wellington City Council v Woolworths New Zealand (No2)25. In the Waitakere City Council case, which concerned a decision to introduce adifferential rating for higher valued, inner-city residential properties, the High Courthad set the decision aside as unreasonable. However, the Court of Appeal was of theview the decision made by the Council was not beyond the bounds of reasonableness.26The Court found that the rating committee had canvassed the issues thoroughly and itwas aware of the steepness of the rating curve and the inequities alleged by the highvalue property owners.[47] As the Court of Appeal said there, the test for impugning the ratingdetermination was a high one on the grounds of unreasonableness,27 and only in anextreme case would the court interfere. A court could intervene only if the decision ofthe Council was irrational or such that no reasonable body of persons would havearrived at that decision. A review was not an appeal on the merits, the Court of Appealconfirmed, and proper respect had to be given to the role and responsibilities ofdemocratically elected councils.28[48] It should be noted, however, these comments were made in relation to thetechnical area of rating decisions. The Court of Appeal there said a less restrainedapproach may be taken against other types of Council decision.2924 At 552.25 At 397.26 Waitakere City Council v Lovelock [1997] 2 NZLR 385(CA) at 397.27 At 397 and 419.28 At 396–397 and 419.29 At 420.Consultation[49] In relation to consultation, the Court in Wellington International Airport Ltd vAir New Zealand held that consultation did not require agreement, nor did itnecessarily involve negotiation toward an agreement, although that might occur.30However, consultation was more than mere prior notification. If the person having thepower to make the decision was required to consult, for consultation to be meaningful,the other party must have available to it "sufficient information to enable it to beadequately informed so as to be able to make intelligent and useful responses".31[50] A decision-maker has a duty to consult properly and with an open mind beforemaking any final decision.32 The decision-maker must provide a proper opportunityto the person consulted to put any matters forward that they wished to,33 and thedecision-maker must take due notice of what is said.34 The proposal must not havebeen finally decided upon in advance, and the decision-maker must listen to whatothers have to say, properly considering their responses, and only then saying whatwill be done.35[51] In Aorangi School Board of Trustees v Minister of Education, French J pointedout a number of aspects of consultation as follows:36(a) consultation is context-specific, and its content and nature isdetermined by the relevant statutory scheme and objectives;(b) consultation is not negotiation — the essential requirement isopen-minded communication. The decision-maker must genuinelyprovide a meaningful opportunity, to those who are given the right tobe heard, to identify and advocate their arguments in relation to theproposal;30 Wellington International Airport Ltd v Air New Zealand [1993] 1 NZLR 671 (CA).31 At 676.32 At 683.33 At 683.34 At 684.35 At 675.36 Aorangi School Board of Trustees v Ministry of Education, above n 19, at [36].(c) the consultees must be sufficiently informed as to the material facts andissues so as to be able to make an intelligent and useful response; and(d) the extent and nature of the necessary consultation should beproportionate to the significance of the proposal.[52] The question, as French J put it:37 is really whether those whose views were being elicited knew andunderstood what they were being asked about, knew what the issues were andhad sufficient information to provide an intelligent and useful response.Review of a local authority's decision-making[53] The Court of Appeal has emphasised that in a judicial review, the Court doesnot substitute its own decision for that of the decision-maker.38 In C P Group Ltd vAuckland Council, the Court said that it first examined the scheme of the legislationand the nature and scope of the Council's powers and statutory processes beforeturning to the decision.39[54] Similarly, as Cooke J noted in Patterson v District Court, Hutt Valley, "[m]ostjudicial review involves the Court assessing whether a decision is made in accordancewith the express and implied requirements of the empowering instrument, both interms of the substantive decision and the procedures followed to reach it."40[55] In both Wellington City Council v Woolworths New Zealand Ltd (No 2) andWaitakere City Council v Lovelock,41 the Court of Appeal proceeded in its analysis ofthe decisions of each council in this way. First, it set out the scheme of the legislationto determine the nature and scope of the council's powers and the statutory processesgoverning their exercise. Secondly, it turned to review the relevant facts, includingthe processes followed by the council and then the decisions in question, to determine37 At [42].38 C P Group Ltd v Auckland Council [2021] NZCA 587 at [83].39 At [84], citing Waitakere City Council v Lovelock [1997] 2 NZLR 385 (CA).40 Patterson v District Court, Hutt Valley, above n 11, at [14].41 Wellington City Council v Woolworths New Zealand Ltd (No 2), above n 22; and Waitakere CityCouncil v Lovelock, above n 39, at 390.whether the respective council had discharged its legal responsibilities. This is theapproach I now propose to adopt.[56] In the present case, the empowering instrument, which confers powers on theCouncil, which contains limitations on those powers, and which describes the natureand scope of the Council's powers and the statutory processes to be followed, is theLGA.[57] It is appropriate that I now detail the decision-making process requirements theCouncil here was obligated to follow under the LGA.Decision-making process requirements under the LGA[58] The LGA provides the framework for local government decision-making.42Under the LGA, there are a number of substantive principles and mandatoryprocedures a local authority must follow in performing its decision-making functions.These obligations are in place to reflect the purpose of local government,43 which isto enable democratic local decision-making and action by, and on behalf of,communities, and to promote the social, economic, environmental, and cultural well-being of communities in the present and for the future.44[59] Section 14 of the LGA outlines the principles a local authority must act inaccordance with in performing its functions, including its decision-making. A localauthority should conduct its business in an open, transparent, and democraticallyaccountable manner, and give effect to its identified priorities and desired outcomes inan efficient and effective manner.45 It should make itself aware of, and should haveregard to, the views of all of its communities.46 When making a decision, a localauthority should take account of the diversity of the community, and the community's42 Hauraki Coromandel Climate Action Inc v Thames-Coromandel District Council [2020] NZHC3228, [2021] NZLR 280 [55].43 See Kenneth Palmer Local Government Law in Aotearoa New Zealand (2nd ed, Thomson Reuters,Wellington, 2022) at [5.10.1].44 Local Government Act 2002, s 10.45 Section 14(1)(a).46 Section 14(1)(b).interests, the interests of future as well as current communities, and the likely impactof any decision on each aspect of wellbeing, as I noted at [58] above.47[60] The constitution of committees and subcommittees, and the delegation offunctions to those committees and officers to facilitate council business, is a long-standing convention and practice of local government.48 The LGA allows a localauthority to delegate to a committee any of its responsibilities, duties or powers apartfrom certain powers listed in that section. In this case, the Council delegatedresponsibility for making the Decision to the Committee. There is no issue with thisdelegation.[61] Part 6 of the LGA sets out the obligations of local authorities in relation to themaking of decisions. Section 76 is the key provision relating to every decision madeby a local authority. Section 76(1) provides that every decision made by a localauthority under the LGA must be made in accordance with the provisions of ss 77(requirements in relation to decisions), 78 (community views), 80 (identification ofinconsistent decisions), 81 (contributions by Māori) and 82 (consultation) asapplicable. Under s 76(2), however, the obligations in ss 77 and 78 are subject to thejudgments of the local authority under s 79 (compliance discretion).[62] Section 76(3) provides that a local authority must ensure that its decision-making processes "promote compliance" with subs (1), and in the case of a"significant" decision, that subs (1) has been "appropriately observed". Subsection(3) thus creates in respect of a local authority's decision-making under subs (1) whatthe Court of Appeal in Minotaur described as "two standards of performance".49 Asthe Court of Appeal said there, the first, and higher, standard is to ensure that in respectof "significant decisions", the provisions contained in subs (1) have been"appropriately observed". The second, lower, standard applies in respect of a decisionwhich is not "significant", in which case decision-making is only required to "promotecompliance" with those provisions.47 Section 14(1)(c).48 Palmer, above n 43, at [5.8].49 Wellington City Council v Minotaur Custodians Ltd [2017] NZCA 302, [2017] 3 NZLR 464 at[33].[63] In terms of the LGA, "significant", in relation to any "issue, proposal, decision,or other matter" means it "has a high degree of significance".50 It is a key aspect ofthe present case that the Decision was one of "medium significance", that is, not a"significant" decision. This assessment is not now and has never been challenged.This means the Council was required to ensure that its decision-making processes"promote[d] compliance with" the requirements for decision-making under s 76(1),subject to its judgments made under s 79. The Council did not necessarily need toensure, however, that all provisions had been "appropriately observed".[64] Section 77 lists certain requirements in relation to decisions (which, however,is subject to s 79).51 Under subs (1), a local authority must, in the course of thedecision-making process, relevantly here:(a) seek to identify all reasonably practicable options for the achievementof the objective of a decision; and(b) assess the options in terms of their advantages and disadvantages.[65] Subject to the discretion relating to the level and depth of compliance, unders 77(1) a local authority must therefore identify all reasonably practicable options forthe achievement of the objective of the decision, and assess those options.52[66] Section 78 provides, in relation to community views, that a local authoritymust, in the course of its decision-making process, give consideration to the views andpreferences of persons likely to be affected by, or who have an interest in, the matter.However, a local authority is not required to undertake any consultation process orprocedure under this section alone.53 And again, this is subject to s 79.5450 Local Government Act, s 5(1) definition of "significant".51 Section 77(2).52 See Council of Social Services in Christchurch/Otautahi Inc v Christchurch City Council [2009]2 NZLR 123 (HC); Whakatane District Council v Bay of Plenty Regional Council [2009] 3 NZLR799 (HC) [Whakatane (HC)]; Island Bay Residents' Association v Wellington City Council [2019]NZHC 1240, [2020] NZRMA 157; and Friends of Onekawa Aquatic Centre Society Inc v NapierCity Council [2020] NZHC 850.53 Section 78(3).54 Section 78(4).[67] Section 79 provides a qualified discretion to make judgments aboutcompliance based on proportionality with the significance of the decision to be made.Under s 79(1), it is the responsibility of a local authority, in its discretion, to makejudgments about:(a) how to achieve compliance with ss 77 and 78 that is largely inproportion to the significance of the matters affected by the decision;and(b) in particular:(i) the extent to which different options are to be identified andassessed;(ii) the degree to which benefits and costs are to be quantified;(iii) the extent and detail of the information to be considered; and(iv) the extent and nature of any written record to be kept of themanner in which the local authority has complied with ss 77 and78.[68] In making these judgments, the local authority must have regard to thesignificance of all relevant matters, as well as to the s 14 principles set out above, theextent of the local authority's resources, and the extent to which the nature orcircumstances of a decision allow the local authority scope and opportunity to considera range of options or the views and preferences of other persons.55[69] In Whakatane District Council v Bay of Plenty Regional Council, the Court ofAppeal observed that a court will not interfere with a discretionary judgment unders 79 unless it is irrational or made on a wrong legal principle.56 In Minotaur, the Court55 Section 79(2).56 Whakatane District Council v Bay of Plenty Regional Council [2010] NZCA 346, [2010] 3 NZLR826 [Whakatane (CA)] at [76].of Appeal stated the sections give local authorities "a deliberately broad discretion asto whether to consult, and if so, how".57[70] The judgment of this Court in Friends of Turitea Reserve Society Inc vPalmerston North City Council related to the decision of the Palmerston North CityCouncil to allow the establishment of a wind farm on local reserve land it owned. Inthat case, Baragwanath J in addressing ss 78 and 79 stated:58[122] Subject to the principle of proportionality, these principles are to beobserved by a local authority in such a manner as it considers to beappropriate in a particular instance. It is bound to have regard to therequirements of s 78 and to the extent to which the current views andpreferences of affected or interested persons are known and the nature andsignificance of the decision or matter, including its likely impact from therespective persons who will or may be affected by or have an interest in thedecision or matter [71] A council typically has a discretion as to the process and level of consultationundertaken.59 Where a local authority does undertake consultation in relation to anydecision, s 82(1) provides that it must do so in accordance with the principles ofconsultation set out in s 82. Those principles include that:(a) persons who may be affected by, or have an interest in, a decisionshould be:(i) provided by the local authority with reasonable access torelevant information in a manner and format that is appropriateto the preferences and needs of those persons;60 and(ii) encouraged by the local authority to present their views to thelocal authority;6157 Minotaur, above n 49, at [42].58 Friends of Turitea Reserve Society Inc v Palmerston North City Council [2008] 2 NZLR 661 (HC)(emphasis added).59 Local Government Act, s 78(3); Friends of Onekawa Aquatic Centre Society Inc v Napier CityCouncil [2020] NZHC 850; Whakatane (CA), above n 56; Pascoe Properties Ltd v Nelson CityCouncil [2012] NZRMA 232 (HC) at [12]; Minotaur, above n 49; and Island Bay, above n 52.60 Section 82(1)(a).61 Section 82(1)(b).(b) where persons are invited or encouraged to present their views to thelocal authority, they "should be given clear information by the localauthority concerning the purpose of the consultation and the scope ofthe decisions to be taken following the consideration of viewspresented";62(c) persons who wish to have their views considered "should be providedby the local authority with a reasonable opportunity to present thoseviews to the local authority in a manner and format that is appropriateto the preferences and needs of those persons";63(d) the views presented to the local authority "should be received by thelocal authority with an open mind and should be given dueconsideration";64 and(e) persons who present views to the local authority should have "accessto a clear record or description of relevant decisions made by the localauthority and explanatory material relating to the decisions".65[72] These principles are to be observed by a local authority "in such manner as thelocal authority considers, in its discretion, to be appropriate in any particularinstance."66 In exercising its discretion in this way, however, the local authority mustnevertheless have regard to, amongst other things, the requirements of s 78, the extentto which the current views of those affected are known, and the nature and significanceof the decision, including its likely impact.67[73] In Whakatane District Council v Bay of Plenty Regional Council, the Court ofAppeal found that the decision by the regional council to relocate its principal office62 Section 82(1)(c).63 Section 82(1)(d).64 Section 82(1)(e).65 Section 82(1)(f).66 Section 82(3).67 Section 82(4).was unlawful as it had inadequately considered submissions at relevant stages of thedecision-making process.68[74] Island Bay Residents' Association v Wellington City Council involved a disputeover a cycleway development.69 The Court found that there was no obligation on theCouncil to require a concept design to undergo a prior peer review or to develop furtheroptions, that a short timeframe for public comment was adequate, that preferences ormajority views expressed by the community were not determinative, and there was nolegitimate expectation established.[75] An obligation to consult may be more apparent in relation to council decisionswith direct financial consequences for residents. In Council of Social Services inChristchurch/Otautahi Inc v Christchurch City Council, which considered asubstantial rent increase to public housing to be a significant decision, this Court heldthe Council's decision to be unlawful for failure to consider practicable options.70[76] The leading decision on the obligations of local authorities in undertakingconsultation is Minotaur.71 That case concerned whether the Council there hadadequately considered the views of the community when making a change in parkingentitlements. The Court of Appeal there took a robust approach in finding sufficientcompliance with the consultation provisions under the LGA. In doing so, itsummarised the effect of s 82 in the following way:[38] The effect of this provision [s 82] is that, when a council does chooseto consult, certain "principles" apply to the particular forms of consultationthe council adopts: most relevantly, those affected should have access torelevant information in an appropriate format and be encouraged to presenttheir views having been given clear information as to both the purpose of theconsultation and the scope of any likely decision. Further, a council mustensure that interested or affected parties have a reasonable opportunity topresent their views, and that those views are received by council with an openmind.[39] In substance, these principles are really basic performance standards.Subsection (3) is the counterweight. This restates (now for the third time) thatthe "how" of compliance with these guidelines is a matter for the local68 Whakatane (CA), above n 56. It should be noted, however, that the obligations under s 78 havebeen reduced since the decision in this case.69 Island Bay, above n 52.70 Council of Social Services in Christchurch/Otautahi Inc v Christchurch City Council, above n 52.71 Minotaur, above n 49.authority. That proposition is subject to the following further considerationswhich the local authority must (relevantly) bear in mind:72(a) the terms of s 78 including, presumably, the fact that it issubject to the reservation to the local authority of the decisionof how to implement;(b) whether the views of those affected are already known to thelocal authority;(c) the significance of the issue in question for those affected; and(d) the costs and benefits of consultation.[77] The Court of Appeal then reproduced s 79 in full and commented that it "beginswith the position that it is for the local authority to decide in its discretion how ss 77and 78 are to be complied with – the fourth such restatement of that principle in Part6."73[78] Finally, the Court stated:[42] In summary, Part 6 of the LGA carefully and repeatedly rejects theidea that there is to be found in its provisions any duty to consult with affectedor interested parties. Instead, local authorities are given a deliberately broaddiscretion as to whether to consult, and, if so, how. That does not mean,however, that there are no limits on a council's discretion. Like all statutorydecisions, consultation decisions must be rational and consistent with theobjects of the LGA and the particular controlling provisions.[79] The decision in Minotaur was applied recently by Wylie J in Mt WellingtonRace Park Club Inc v Auckland Council:74[99] The principles articulated in Wellington City Council v MinotaurCustodians Ltd have been followed in a number of subsequent cases, all ofwhich emphasise the discretion afforded to local authorities about how toconsult, and avoid engaging in intense scrutiny of the decision-makingprocesses involved.75[80] Wylie J went on to consider there that consultation does not require the localauthority to accept or agree with the submissions made. In that case Wylie J was72 Local Government Act, s 82(4).73 Minotaur, above n 49, at [41].74 Mt Wellington Race Park Club Inc v Auckland Council [2020] NZHC 1245, [2020] NZRMA 469.75 Evans v Clutha District Council [2020] NZCA 5, [2021] NZRMA 374; Gwynn v Napier CityCouncil [2018] NZHC 1943; Friends of Onekawa Aquatic Centre Society Inc v Napier CityCouncil, above n 59; and Save Chamberlain Park v Auckland Council [2018] NZHC 1462.satisfied the Council had met the standards of consultation required. His Honourstated:76[102] In my view, the Council and AT broadly observed the consultationprinciples set out in s 82. The evidence suggests that the Council and AT wereaware of and understood the views and preferences of the other users. TheCouncil and AT understood the nature and significance of their decision tolease the property on commercial terms on the other users. Relevantinformation was made available to the other users. They had every opportunityto present their case. There is nothing to suggest that the Council and ATlistened to those views with anything other than an open mind. In particular,the meeting called by Councillor Hulse afforded the opportunity for theCouncil to change its mind and allow the property to be leased to AMCC foruse by it and others.[103] In the round, in my view the actions of the Council and AT met thestandards expected of a local authority. The fundamental problem forMWRPC is not that the views of its members were not heard and considered—they plainly were. Instead the other users' complaint is that the Council andAT did not agree with their views. There is force in the Council's argumentthat these proceedings have been brought in an attempt to obtain whatpersuasion could not achieve.[81] The learned author of Local Government Law in Aotearoa New Zealand,Mr Kenneth Palmer, notes also in his recent book: "None of the decision-makingobligations requires or binds the local authority to accept the weight of submissions,views or preferences of the community or other persons consulted."77 Palmer alsogoes on to comment:78 Consultation is not the same as negotiation. The consultees should be givenadequate information to know what is proposed, and be given a sufficientopportunity to express views and make useful responses. The receiving bodyshould be informed of and assess the matters with an open mind, but is notbound to respond to individual submitters or identify individual matters Analysis — Did the Council follow the correct legal process in making itsdecisions in question?[82] Having traversed in some depth the LGA decision-making processrequirements for which the Council was obliged to "promote compliance" in makingthe Decision, I turn now to my analysis.76 Mt Wellington Race Park Club Inc v Auckland Council, above n 74.77 Palmer, above n 43, at [5.10.7], citing Whakatane (HC), above n 52; Island Bay, above n 52; andHauraki Coromandel Climate Action Inc v Thames-Coromandel District Council, above n 42.78 Palmer, above n 43, at [5.10.9].[83] The applicant says there are five issues in this proceeding before the Court.The first three relate to the statutory process ground, the fourth to material errors offact, and the final issue concerns the relief which is sought.Issue one: reasonably practicable alternatives — did the Council fail to identifyand assess all reasonably practicable alternatives for the achievement of thesafety objective of its decision?[84] The applicant TQC says the Council failed to identify and assess all reasonablypracticable alternatives for the achievement of the safety objective of its decision, asit was required to do by s 77 of the LGA. TQC says the Council consulted only on itspreferred option and the Committee made no assessment of alternative options.[85] As I have noted, under s 77(1), the Council was required in the course of itsdecision-making process (subject to its discretion under s 79), to (a) to seek to identifyall reasonably practicable options for the achievement of the objective of a decision;and (b) to assess the options in terms of their advantages and disadvantages.The objective of the Decision[86] The Council clearly identified the objective of the traffic resolution in itsConsultation Paper. Under the heading "Why we are proposing the change", theCouncil stated:79• Thorndon Quay is a major arterial transport thoroughfare forWellington City linking the Wellington Central Business District(CBD) to the State Highways and the northern suburbs. It has approx.30,000 – 50,000 people moving through it daily.• With the increase in people cycling along Thorndon Quay, the numberof injuries incidents relating to cyclists have increased over the lastfive years. A major contributor to incidents on Thorndon Quay relatesto conflicts between cyclists and motorists using the angled car parksparticularly in the section between Moore Street and Tinakori Road.• Changing the parking layout from angled to parallel will improvesafety for cyclists along this section of Thorndon Quay.79 Emphasis added.[87] In my view, the emphasised passage clearly illustrates the objective of theDecision. Indeed, the applicant appears to accept it was this safety hazard on whichthe Council chose to consult.[88] The applicant TQC, however, then points to comments it says reveal a distinctobjective, namely to resolve the lack of lateral space available to cyclists betweenangled parking spaces and the moving vehicles. However, as I see it, this is clearlythe same objective. Both concern the safety of cyclists travelling along ThorndonQuay.[89] I am satisfied the objective of the Decision was to improve the safety of cycliststravelling along Thorndon Quay.What the Council did[90] Having identified that objective, it was then incumbent on the Council under s77(1) to identify and assess all reasonably practicable options for achieving thatobjective.[91] Mr Brad Singh (Mr Singh) at the operative time was the Council'sTransport Manager. He is a senior employee of the Council. It transpires that afterthe Council received the 2020 Waka Kotahi Audit Report highlighting the danger tocyclists on Thorndon Quay, he was instrumental in determining that the Councilshould explore how to improve safety.[92] According to Mr Singh's evidence, he and his team considered various optionsover the course of five meetings or workshops. These options included: changing theangles of the existing angled parking; using "reverse in" angled parking; installingmirrors; changing clearway times; and installing another clearway.[93] It appears Mr Singh and his team discarded certain options for various reasons,including impracticality, not adequately reducing safety risk, high cost, or potentialconflict with the LGWM options. Ultimately two reasonably practicable options wereidentified.80 The first was to change the configuration from angled parking to parallelparking until LGWM made further changes. The second was the status quo untilLGWM made changes.Did the Council seek to identify all reasonably practicable alternatives and assess theoptions in terms of their advantages and disadvantages?[94] The applicant TQC submits that it was wrong that various options werediscarded by Mr Singh and his team as not reasonably practicable rather than by theCommittee itself. However, I accept the respondent's submission that there is nothingunlawful in options being considered and discarded as not reasonably practicable byCouncil officers. The legislation does not require that the specific decision-maker hasbefore them all options. Rather, it requires that the local authority seek to identify allreasonably practicable options. I consider there is a certain amount of discretionavailable to the Council in terms of how it chooses to do this. There is nothingpreventing the Council from "seeking to identify" all reasonably practicable optionsthrough one of its officers. Indeed, it is strongly arguable that there is a greater chanceof the Council identifying all reasonably practicable options if this work is done by anexperienced officer within whose job description such a task falls. In my view, if theCouncil utilises one of its officers to identify all reasonably practicable options, andthe officer then presents to the specific decision-maker the results of theiridentification of all reasonably practicable options, it will have fulfilled therequirement under s 77 to "seek to identify" such.[95] The Island Bay case in my judgment supports this view. In that case, fourreasonably practicable options for the implementation of a cycleway in Island Bay hadbeen developed for consultation by Tonkin + Taylor, a consultancy engaged by theCouncil. The Judge in that case saw no issue with these "reasonably practicable"options being developed by an external consultancy.81[96] While the TQC in the present case endeavours to rely on the decision inCouncil of Social Services in Christchurch/Otautahi Inc to support its argument in thisregard, in that case the issue was that the Council had failed to explore to any real80 Affidavit of Mr Bradley Singh, 6 June 2022, at [4.5]–[4.6].81 Island Bay, above n 52, at [82]–[86].degree an option it had already identified as reasonably practicable and then it madeits decision before receiving information from the Government necessary to evaluatethat option.82[97] I note too that in that case Chisholm J expressly recognised the Council wasonly required to identify "reasonably practicable" options, which "[i]nevitably"involves an exercise of judgment by the local authority.83 As his Honour went on tosay, "the Court cannot be expected to intervene where the judgment reached by thelocal authority about whether an option was reasonably practicable was open to it."84[98] I accept that in the present case the Council did identify the reasonablypracticable alternatives through the work of Mr Singh and his team.85 I accept thatwhile Mr Singh and his team had a clear preference between the two alternatives forthe first option, both were potential outcomes if the Committee decided not to adoptthe traffic resolution. It was not necessary to include in the Consultation Paper or theParking Analysis Paper the other options which had been identified and then discardedas not practicable. Indeed, listing these unviable options would simply have createdconfusion and problematically have gone against the very idea of proper consultationwith the public.[99] And, as to whether the Council fulfilled the requirement to then "assess" theoptions and their advantages and disadvantages, I am also satisfied this occurred here.[100] Perhaps somewhat unusually for a matter such as this, transcripts of Committeemeetings were made and have been made available to the Court. These demonstratethat Mr Singh was questioned extensively at the Committee meeting held on21 June 2021, and was specifically asked about the assessment of the options. As theevidence confirms, Mr Singh proceeded to give a full account of his reasoning. I amsatisfied, given the fact that the Committee, having heard Mr Singh's reasoning, thenwent on to vote in favour of the Decision, that the majority of Committee members82 Council of Social Services in Christchurch/Otautahi Inc v Christchurch City Council, above n 52.83 At [51].84 At [51].85 I note also at this stage in passing the opinion of Mr Paul Durdin, who confirms that in his opinionthe alternatives proposed by the applicant were not reasonably practicable: affidavit ofMr Paul Durdin, 14 June 2022, at [7.2]–[7.4].who voted in favour of the traffic resolution were satisfied by his assessment of theoptions.[101] It is also, as I see it, not for this Court on judicial review now to second-guesswhy the Council did not consider some options as reasonably practicable. I amsatisfied that in this case there is a proper evidentiary basis explaining why the Councilproceeded as it did.[102] But, in any case here, while the Committee properly proceeded on the basis ofthe work of Mr Singh and his team, the Committee also, as I understand the position,did have before it the alternative options the applicant TQC claims the Council hadnot considered in its consultation. From Mr Singh's evidence, he and his team hadconsidered the majority of these alternative options in their meetings and workshopsin any case, and discarded them as not reasonably practicable. The Committee thenexpressly asked Mr Singh whether alternative options had been considered. MrSingh's evidence is that he "listed some of the options and provided reasons as to why[they] had rejected those particular options".86[103] I have read the transcript from the Committee hearing and I am satisfied thatMr Singh's explanations as to why they discarded certain alternative options —including those proposed by the applicant TQC — as not reasonably practicable, wassufficiently fulsome here. Although Mr Singh did not explain the nature of theworkshops he and his team undertook, he was not required to. It is necessary only thatthe Committee was properly satisfied that Mr Singh and his team had undertaken anadequate analysis into whether all reasonably practicable alternatives had beenconsidered, and assessment made of their advantages and disadvantages.[104] I am satisfied the fact the Committee heard Mr Singh's views expressed for histeam and then voted in favour of the traffic resolution demonstrates sufficientassessment of the advantages and disadvantages of the alternative options proposed.Weighing up the advantages and disadvantages of options is something people —particularly Councillors experienced in such matters — necessarily do as part of voting86 Affidavit of Mr Singh at [4.20].on a proposal. This is particularly the case where the options as here are either aproposed change or retaining the status quo.[105] In the Council of Social Services in Christchurch/Otautahi Inc decision, as Inote above, Chisholm J found that a local authority's decision was "not in conformitywith the statutory regime" in circumstances where it had failed to assess all reasonablypracticable options on a decision to increase rents for low-cost housing it owned.87However, I am satisfied that case involved a different scenario, in which the localauthority was unable to adequately do so until it had received necessary informationfrom the Government, which in fact it did not wait to receive before making itsdecision. That is an entirely distinct set of circumstances from the present situation.Conclusion[106] The applicant TQC argues that error occurred here in that the Committee didnot have before it the information it would have needed to make its own assessmentof the advantages and disadvantages of all the reasonably practicable options forachieving the objective of the decision it made. I do not accept this. The Committeeexplicitly raised with the Council officer Mr Singh the question of whether he and histeam had considered alternative options. It then heard his evidence as to why certainalternative options had been discarded as not reasonably practicable. There isevidence in the form of the transcript of the Committee meeting demonstrating this.In the terms described in Minotaur, there is therefore an evidentiary basis explainingwhy the Council proceeded as it did.88 In these circumstances I am satisfied theCouncil, through the Committee as its delegated authority body, sought to identify allreasonably practicable alternatives for the achievement of the objective of theDecision, and assessed the advantages and disadvantages of those options.[107] It is not for this Court on judicial review to undertake an assessment of alloptions that were available to the Council in achieving public safety onThorndon Quay. It is the role of the Court to assess whether the Council, through itsdelegate the Committee, had satisfied itself that in making its decision it had before it87 Council of Social Services in Christchurch/Otautahi Inc v Christchurch City Council, above n 52,at [59]–[67].88 Minotaur, above n 49, at [67].all reasonably practicable alternatives for the achievement of the stated objective. Inthis respect, as I have noted, the Committee relied on the work done by its senioremployee Mr Singh and his team, and it questioned him on this extensively, asevidenced in the transcript of the Committee hearing. I am satisfied the Committeehad before it in this way all reasonably practicable alternatives, it actedproportionately, and it was entitled to proceed as it did.Issue two: consultation — did the Council fail to consult with businesses on twokey matters?[108] It is accepted by all parties that because the Council undertook a consultationexercise on the traffic resolution, it was therefore required under the LGA to complywith the consultation principles set out in s 82 described above.[109] However, the applicant TQC maintains here the consultation processundertaken by the Council was generally inadequate. It says there was no need for anurgent timeframe and that it had advanced a good reason for an extension to theconsultation period, namely the fact the businesses in the area were particularlyaffected by the traffic resolution and desired to compile a collective submission.89[110] The crux of the challenge under this head, however, is that the applicant TQCcontends the Council failed to consult with businesses on two key matters and theseomissions were in breach of the LGA. The two matters in particular are, first, anunstated objective that it is alleged the Council subsequently purported to rely on inmaking its decision, and secondly, an internal analysis of alternative options conductedby Council officers.[111] The "unstated objective" the applicant TQC refers to is what it says is theundisclosed aim of the Decision to increase the lateral space on Thorndon Quay. Theapplicant says because this objective was not stated, the Council failed to give clearinformation concerning the purpose of the consultation and the scope of the decisionsto be taken following the consideration of views presented. The applicant says it wastherefore unable to make submissions on this unstated issue of lateral space, an issue89 Affidavit of Mr Robinson at [77]–[83].which, in reliance on the evidence of its expert economist Mr Harrison, it says has noempirical basis.[112] As will be evident from the foregoing analysis, I do not accept the issue oflateral space was an unstated objective of the Council. To the extent the Council hadan inclination to increase the lateral space on Thorndon Quay, I am satisfied this wasin pursuit of their real and overarching objective, which as I have noted was to improvecyclist safety. I do not accept the Council had and subsequently purported to rely onan unstated objective. Any consideration the Council had to the lateral space availablewas relevant only to the extent it impacted upon its real and stated objective of cyclistsafety. This was clearly outlined and described. The applicant TQC and others in myview had ample notification of this and should have been fully aware of it.[113] The second major respect in which the Council is said to have breached s 82relates to its alleged failure to make publicly available an analysis of the reasonablypracticable options, including the proposed change to parallel parks, that had beenidentified under s 77(1). The applicant TQC says this failure is significant given theevidence now that Council officers conducted such an internal analysis.[114] However, I do not accept the Council breached s 82 in any failure on its part toprovide this information. I am satisfied in this instance the Council provided to thepublic reasonable access to all relevant information. The Council elected to undertakeconsultation on the traffic resolution, it provided information about the options it wasconsidering, and in particular the proposed change to parallel parks. To a large extent,the internal analysis the Council conducted was irrelevant to any consultation, as theanalysis was an assistive tool for its own consideration. Indeed, any consultation onthe other discarded options included in that internal analysis would arguably have beendisingenuous, confusing and actually impeded proper consultation. This was becausethe Council had already discounted those other alternatives — through the analysis ofits officer, Mr Singh, and his team — as not reasonably practicable, and therefore notviable options.[115] Although the Council was only required to ensure that it would "promotecompliance" with the s 82 principles, as an aside I add that it is my view here that infact all of the consultation principles in s 82 were met in this case.[116] I am satisfied the Council here did provide reasonable access to the relevantinformation in a clear form. In particular, I note that on 19 May 2021 representativesfrom the applicant requested additional data that had been used to compile the ParkingAnalysis Paper. Mr Kylie Hook, for the Council, offered to provide that informationto the applicant and did so on 28 May 2021.90 Though I accept this was notinformation that needed to be proactively released to the public, I believe this responsefrom the Council to the request from the applicant demonstrates the Council's interestto ensure it did provide all relevant information to interested parties.[117] I am also satisfied from all the material before the Court that the Councilencouraged the public to present their views and that it provided an adequate periodfor its consultation.[118] I refer at this point to Part 7 of the Council's Plans, Policies & Bylawsregulations, which part deals with traffic. Clause 12 of those regulations provides:12. Public notification12.1 Any resolution proposed under this Part shall be placed on the Council'swebsite at least 14 days before the Council considers it. Any person mayprovide comments, in writing, on the proposed resolution and those commentswill be considered by the Council before it makes a resolution. Any personwho has made written comments may request to be heard by the Council andit is at the Council's sole discretion whether to allow that request.[119] Clause 12 represents the Council's judgment as to how it undertakesconsultation in relation to traffic resolutions. As can be seen, the Council's position isthat a two-week period of consultation will typically be sufficient. In the present casehowever, submitters were given four weeks to present their comments on the proposedresolution. The applicant TQC was given a further two days. While this might not beregarded as a generous extension, nevertheless I am of the view that overall the periodof time provided for consultation was sufficient in this case.90 Affidavit of Mr Kylie Hook, 13 June 2022, at [3.9].[120] The public also in my view had a reasonable opportunity to present their viewshere in a manner and format that was appropriate to their preferences. Both writtenand oral submissions were heard and considered. I am satisfied there is a clear recordof the Council's decision as well as explanatory material relating to that decision. Thissupporting material took the form of Mr Singh's report recommending the adoption ofthe traffic resolution, an analysis of the relevant parking data, an analysis of thesubmissions received, copies of all those submissions, and accurate minutes of themeeting as well as a transcript.[121] Finally, there is nothing before me to suggest that the Council received thepresented views other than with an open mind. The Council held two public meetingsto discuss the proposed changes to Thorndon Quay generally. The Councilacknowledges that the two meetings that took place between LGWM officers and theapplicant might be considered now as unsatisfactory for both sides. However, there isnothing to suggest this represented a "closed mind" on the part of the Council. Theofficers present at those meetings were not the decision-makers. The decision-makerswere the members of the Committee, who, as noted, were all elected Councillors.[122] I am satisfied there has been nothing put before the Court to suggest that theCouncillors themselves approached the question with predetermination91 or withanything other than an open mind. They listened to submitters, considered their views,and, as evidenced by the transcript of the hearing, questioned and tested Mr Singh interms of the work he and his team had done in recommending the change to parallelparks. In Friends of Turitea Reserve Society Inc v Palmerston North City Council,Baragwanath J held that "open minded" in a consultation context did not mean"without predisposition", but rather, "prepared, despite predisposition, honestly toconsider whether to change its mind".92 On one view of matters, this may well haverepresented the situation here. Though the Council initially might have had a preferredoption, namely changing the angled parking to parallel parking, I am satisfied the91 Pre-determination on the part of the Council was raised before me as an issue on behalf of theapplicant TQC, but it does not appear to be part of its pleadings here. Further, the Council and theCommittee, as decision-makers, resolved to approve the Decision only by a 10 – 5 majority voteof councillors, which itself might be seen at one level as indicating the extent to which thecouncillors in their deliberations fully grappled with all the issues here.92 Friends of Turitea Reserve Society Inc v Palmerston North City Council, above n 58, at [98].circumstances were such at the time that the Council would have been prepared toreconsider the position had, for instance, there been reasoned and strong overall publicopposition to the proposal.[123] Having considered the position and all the relevant material, I am satisfied theCouncil undertook adequate consultation on its proposal in this case. In my view itcomplied with all of the principles of consultation as set out in s 82. I do not acceptthe applicant's submission that the Council breached s 82 in failing to consult withbusinesses on the two key matters raised, namely an "unstated objective" and theinternal alternative option analysis, as alleged.Issue three: discretion under s 79 — did the Council fail properly to exercise itsjudgment pursuant to s 79 of the LGA?[124] The applicant says the Council failed properly to exercise its judgmentpursuant to s 79 of the LGA, which provision required the Council to make certainjudgments. While it appears there is no record of those judgments before the Court,the applicant contends the record of what the Committee knew is clear, and it lackedthe information necessary to properly make those judgments.[125] Section 79, according to the applicant TQC, is not a "de facto ouster clause",the effect being that it need not comply with its decision-making obligations under theLGA. Instead the applicant argues s 79 imposes a further obligation on the Council tomake a judgment about how to achieve compliance with its decision-makingobligations. The argument follows that such judgments, once made, will colour theappropriate manner of compliance with those obligations.[126] Recalling the terms of the legislation, the applicant contended that theCommittee, as the Council's delegated decision-maker in this case, was required unders 79 to make judgments on how to achieve compliance with ss 77 and 78 in a mannerthat was largely in proportion to the Decision's significance, in particular on:(a) the extent to which different options were to be identified and assessed;(b) the degree to which benefits and costs were to be quantified;(c) the extent and detail of the information to be considered; and(d) the extent and nature of any written record to be kept of the manner inwhich it had complied with ss 77 and 78.[127] The applicant says the Committee could not make the required judgmentsunder s 79 at its 24 June 2021 meeting, because it was missing information necessaryto do so. In particular, the applicant says the Committee did not know:(a) all the options considered by Mr Singh's team;(b) the reasons why Mr Singh's team had rejected each option;(c) the extent to which different options had been identified and assessedby Mr Singh's team;(d) the degree to which Mr Singh's team had quantified benefits and costs;(e) the extent and detail of the information Mr Singh's team considered; or(f) the extent and nature of written records Mr Singh's team had kept.[128] The applicant says the Committee therefore lacked sufficient information tomake the required judgments under s 79 as to whether the extent, degree ofquantification and detail of the assessment of options was appropriate to achievecompliance with the decision-making provisions.[129] The further submission is advanced that, because the Decision was said to bebased on empirical evidence about safety and parking utilisation as set out in theParking Analysis Paper, it would be reasonable to expect some level of quantificationof costs and benefits. The applicant goes on to contend that, because the Councilproduced written documents for consultation, this must suggest it considered a writtenrecord to be appropriate, and therefore there is "no good reason" why this should notalso be the case with respect to the Council's assessment of all "reasonably practicableoptions". At a basic level, the applicant says there is no evidence before the Court thatthe Council made the required judgments.[130] Mr Whittington for the Council strongly disputes this. He says the Council didrecord judgments about how it intended to achieve compliance with the decision-making and consultation principles. In this regard he points to the Council's bylaw,which expressly records that traffic resolutions will be the subject of two weeks'consultation (which carries with it an implicit judgment that traffic resolutions are notgenerally considered of high significance, such that they would invoke the specialconsultative procedure or longer and more in-depth consultation). Mr Whittingtondoes acknowledge that it would have been preferable for there to have been inexistence a document identifying the options considered by Mr Singh and his team,with reasons why each was not considered reasonably practicable. However, theCouncil's position is that the evidence presented to the Court demonstrates clearly theadvice given to the Committee by Mr Singh was sufficient to ensure the Committeewas satisfied it had before it all reasonably practicable alternatives.[131] In response, the applicant says it relies on the decision of the Court of Appealin Whakatane District Council in this respect.93 In that case, the High Court hadconcluded that a judgment under s 79 could "be inferred from what occurred" andneed not be separately expressed.94 However, on appeal the Court of Appeal rejectedthis approach. The Court of Appeal there held that the local authority "did not makeany s 79 judgment at all" and the Court was "not prepared to share the assumption ofthe [High Court] Judge that somehow that did occur when no evidence supports thatconclusion".95 The applicant interpolates from this that the Court will not infer that ajudgment has been made purely from the fact of the decision itself.[132] I accept the Court of Appeal Whakatane District Council decision to someextent is authority for the point the applicant makes. If a local authority on the basisof s 79 utilises its discretion so as to limit the extent and nature of compliance with the93 Whakatane (CA), above n 56.94 Whakatane (HC), above n 52, at [71].95 Whakatane (CA), above n 56, at [78].legislative requirements, I accept that such a decision under s 79 must be madeexplicit.[133] However, I am of the view that the decision at issue in theWhakatane District Council case was clearly distinct from the decision in the presentproceeding. First, the Court of Appeal found that the Whakatāne District Council theredid not fully comply with the decision-making provisions as it was required to.[134] And, importantly, in that case, the impugned decision was a decision to relocatethe Bay of Plenty Regional Council from Whakatāne to Tauranga. This was, as allparties in that case accepted, a "significant" decision in the terms of the LGA.96Therefore, the Regional Council had to ensure that all requirements in the decision-making provisions were, in the terms of s 76(3), "appropriately observed". Indeed, asthe Court of Appeal noted in that case, in such a circumstance the burden ofestablishing that the obligation had been met lay on the Regional Council as thedecision-making body.97[135] In the present proceeding, as noted earlier, the Committee assessed theDecision in question as one of "medium" significance. This meant the Committee, asdelegate for the Council, was required to "promote compliance" with the decision-making provisions, but not necessarily to ensure that those provisions had been"appropriately observed" (which would have been the situation had the Decision beenclassed as "significant"). There is a clear distinction made in the legislation betweenthose types of decision. Only in respect of "significant" decisions must there be fullobservance of each decision-making provision. The Whakatane District Council caseinvolved a significant decision; the present proceeding does not. The standard ofcompliance in respect of the present Decision is lower and less burdensome than thatrequired in Whakatane.[136] As I see the position, the decision in Whakatane differs in another materialrespect from the present. In that case the Council had accepted the recommendationto move and agreed "in principle" to the relocation, "subject to further detailed96 At [15].97 See at [72]–[74].investigative work on costs and accommodation",98 prior to meeting with members ofthe community and undertaking consultation. In the case before me however, althoughthe Council might have had a preferred alternative option when it went intoconsultation, I have found there was no predetermination or "closed mind" on its part,when the Council undertook public consultation on the proposal.[137] In making judgments under s 79, a local authority must have regard to thesignificance of all relevant matters, as well as to the principles relating to localauthorities set out in s 14, the extent of that local authority's resources, and the extentto which the nature or circumstances of a decision allow the local authority scope andopportunity to consider a range of options or the views and preferences of otherpersons.99 On these aspects the comment in Minotaur, where the Court of Appealstated the sections give local authorities "a deliberately broad discretion as to whetherto consult, and if so, how,"100 is notable.[138] I also note that in the Whakatane District Council case, the Court of Appealobserved that a court will not interfere with a discretionary judgment under s 79 unlessit is irrational or made on a wrong legal principle.101[139] Here, the Council has advised the Court that the extent to which it resourcedthe Parking Analysis in terms of s 79(1) reflected the fact this Decision was seen asonly a medium significance matter.[140] The major issue at play in this case is whether the Council complied with itslegal requirements. Section 79, at its base, is concerned with compliance with thoselegal requirements, and in particular with ss 77 and 78. The applicant's case is thatthere were reasonably practicable options available to achieve the objective of theCouncil which the Council here failed to consider. However, as I have found, theCouncil's identification and assessment of all reasonably practicable options wasadequate, and it complied in this way sufficiently with ss 77 and 78. I am of the viewthat where a local authority has complied with all the relevant decision-making98 See at [36].99 Local Government Act, s 79(2).100 Minotaur, above n 49, at [42].101 Whakatane (CA), above n 56, at [76].provisions, particularly in a situation where it is only required to "promotecompliance" with those provisions, a failure by that local authority to record in writingits judgments made in exercising its discretion under s 79 as to how it will "achievecompliance" does not give rise to an error amenable to overturning by a court onjudicial review.[141] In reaching this conclusion, I observe that while the Committee never expresslyrecorded its judgments as to how it would comply with ss 77 and 78, as the Court ofAppeal noted in Minotaur, such is sometimes:102 to be expected. The Council cannot be required to meticulously recordreasons for its approach to procedural detail as if it were a court. As s79(1)(b)(iv) implies, that would create too heavy a burden on a busy councilwith a finite budget.Rather, as the Court of Appeal said in Minotaur, "[a]n assessment of all relevant factsand factors is required with due deference to the breadth of the discretion. Apunctilious approach must therefore be avoided."103 Section 79 is at its heart adiscretionary provision and due deference to the Council's exercise of that discretionis warranted.[142] I note also there is nothing in the statute itself which stipulates that thejudgments the local authority makes under s 79 must be expressly recorded. ThoughI do note the comments of the Court of Appeal in Whakatane that an express record ofthose judgments under s 79 was necessary, I consider the higher standard the Courtsaid was required in that case must be seen in light of the facts there, and in particularthe fact that the impugned decision was a "significant" decision in terms of the LGA,requiring all relevant provisions relating to the decision-making process to be"appropriately observed", pursuant to s 76(3).[143] There is not here any specific record before the Court of the Council, eitheritself or through its delegate the Committee, making any express judgments under s79 as to how it would achieve compliance with ss 77 and 78. However, I repeat theDecision in this case was a decision of "medium" significance, and therefore required102 Minotaur, above n 49, at [59].103 At [59].the Council only to "promote compliance" with the provisions. And, as I have alsofound, the Council nevertheless achieved compliance otherwise with thosedecision-making provisions. Thus, despite there appearing to be no specific record ofthe manner in which it has done so, matters which s 79 is itself designed to achievehave been appropriately met. In these circumstances, I am satisfied there was noreviewable error on the part of the Council in relation to its exercise of discretion unders 79.Issue four: mistake of fact — did the Council proceed on material errors of fact?Alleged mistakes of fact[144] The applicant alleges the Council proceeded here on the basis of materialfactual errors in relation to two key assumptions underpinning the Council's decision,namely:(a) that the reduction in the number of parks would not have any adversesocial or economic impact on Thorndon Quay businesses; and(b) that parallel parks were comparatively safer for cyclists travelling alongThorndon Quay than the existing angled parks.[145] The applicant says both assumptions were critical to the Decision made, andas the assumptions reached by the Council were wrong and are reviewable, the failureof the Council to correctly determine those issues meant that its Decision proceededon two false premises.[146] It is not asserted here that the Council proceeded to make its Decision on thebasis of no evidence, but rather that the evidence relied on by the Council to supportthe Decision made was mistaken and therefore not reliable.[147] As the applicant asserts the assumptions made here were inaccurate, incorrector unreliable, it contends the Decision is rendered unsafe and the Court must interveneto provide an appropriate remedy. In particular, correction of errors in materialassumptions made here is necessary to ensure that the local authority fulfils itsstatutory obligation to assess options in terms of their advantages and disadvantagesunder the LGA decision-making framework.Law on mistake of fact[148] As acknowledged in a line of English cases, the courts can interfere where adecision-maker "has acted upon an incorrect basis of fact".104 A decision will beunlawful where "the decision-maker is shown to have misunderstood or been ignorantof an established and relevant fact".105 As the Court of Appeal of England and Walesnoted in E v Secretary of State for the Home Department, a mistake of fact giving riseto unfairness is a separate head of challenge.106 According to the Court in that case,the "ordinary requirements" for a finding of unfairness under this head are:107 First, there must have been a mistake as to an existing fact, including amistake as to the availability of evidence on a particular matter. Secondly, thefact or evidence must have been "established", in the sense that it wasuncontentious and objectively verifiable. Thirdly, the appellant (or hisadvisers) must not been have been responsible for the mistake. Fourthly, themistake must have played a material (not necessarily decisive) part in thetribunal's reasoning.[149] Reasoning recognising the Court's role in correcting mistakes of fact has beenendorsed in New Zealand.108 In Ririnui v Landcorp Farming Ltd, the Supreme Courtendorsed the English authorities and noted that a mistake of fact may be "made incircumstances which would render a decision based on it susceptible to review".109The Supreme Court has observed, too, that the ultimate conclusion of a fact-findingbody can "sometimes be so insupportable – so clearly untenable – as to amount to anerror of law", for instance where the true and only reasonable conclusion contradictsthe determination.110104 Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977]AC 1014 (HL) at 1047 per Lord Wilberforce.105 Bubb v Wandsworth London Borough Council [2011] EWCA Civ 1285 at [21], citing Begum vTower Hamlets London Borough Council [2003] UKHL 5, [2003] 2 AC 430 at [7].106 E v Secretary of State for the Home Department [2004] QB 1044 (CA) at [66].107 At [66].108 See Daganayasi v Minister of Immigration [1980] NZLR 130 (CA) at 147–149.109 Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 at [54].110 Bryson v Three Foot Six Ltd, above n 15, at [26].[150] To the extent that a decision-maker might have made an error of fact by beinginadequately informed, the law is clear that the steps taken to be informed must bereasonable in the circumstances.111First alleged mistake of fact — no adverse social or economic impact of reducing thenumber of parks[151] The applicant says the Committee proceeded on the assumption that therewould be no adverse impact on businesses because there were thought to be sufficientparks available to meet existing and anticipated demand for parks.[152] The Parking Analysis Paper relevantly described it in these terms:Key Findings• • The parking on Thorndon Quay is mostly underused with 53 percentof 2 hour parking spaces occupied and 70 percent of 9+ hour parkingspaces occupied at peak occupancy (weekdays from 8 am to 6 pm)• • The data indicate that converting angle parking to parallel parking onThorndon Quay has the potential to improve both safety and parkingusage without negatively affecting visitors to businesses[153] The position was then articulated in the Consultation Paper as relevant asfollows:Additional Information• Parking surveys were conducted on the existing demand alongThorndon Quay. The result showed that the reduced number of carparks can meet the short-term parking demand while commuterparking demand is met elsewhere. • The surveys were conducted during the hours between 8am to 6pm onbusiness days and assumes no parking occupancy during the morningclearway time 7am to 9am.• The existing car parking space consists of 333 spaces made up of 274angled and 59 parallel parks between Tinakori Road and MooreStreet.• The data shows an average of 53% occupancy in the 2 hr restrictedspaces and 70% in the 10 hour spaces. The average stay is 37mins.• The reduced car parking numbers (202 spaces) are expected to besufficient based on average occupancy. 111 Taiaroa v Minister of Justice HC Te Whanganui-a-Tara | Wellington CP99/94, 4 October 1994.• Based on short stay occupancy data the proposed reduction of parkingspaces can meet the parking demand albeit some may not be directlyconvenient to all business customers. [154] The applicant says the absence of any adverse effect on businesses was acritical component of the Decision. Had there been found to be an adverse impact, theapplicant contends the Council would have been required to consider and weigh thatimpact against the suggested safety benefits, in line with s 77. This is plainly correct.I accept too that this issue was material to the Decision made.[155] Before me, the applicant brought evidence from six Thorndon Quay businessowners in relation to claimed decreases in customers and revenue which is said toshow the applicant was "demonstrably incorrect" in its assumption. The applicant alsosays the Council has itself experienced a substantial decrease, as much as 19 or 23 percent, in the number of parking transactions, and accordingly in large measure to itsrevenue as well, in contrast to the Council's predicted annual loss in revenue of onlysix per cent.[156] I consider this evidence however, being ex post facto, is of limited utility to thequestion of whether the Council wrongly proceeded on the basis of an incorrectassumption as to the social and economic impact of the proposed change. I accept theCouncil's submission that the lawfulness of the Decision must clearly be based on theevidence the Council had (or ought to have had) in front of it at the time. The evidenceof business owners adduced in this case which suggests the change to parallel parkshas had an adverse effect on their businesses, while no doubt valid, is nevertheless notrelevant here except to the extent to which it demonstrates what the Council eitherknew or ought to have known at the time the Decision was made as to the likelydetrimental impacts on businesses.[157] I now turn to assess whether the Council's conclusion that there would be nosocial or economic impact on Thorndon Quay businesses was one that was reasonablyavailable to be made on the evidence and information before it.[158] The principal basis for the Council's view that after the proposed change therewould remain sufficient parking to meet demand was the Parking Analysis Paper. Theapplicant challenges the methodology adopted in that Paper. It submits that the Paperprovided an unreliable basis for the conclusion that there would be no social oreconomic impact on Thorndon Quay businesses. This challenge is made on the basisof criticisms put forward by Mr David Wanty, the applicant's expert transport engineer,who advances four fundamental flaws with the methodology adopted for the Paper,namely:(a) the inappropriate use of averages;(b) a failure to apply analysis in a practical way;(c) a failure to consider off-street parking; and(d) the inclusion of data collected during COVID-19 Alert Level Two.[159] I do not consider, however, it is necessary here to traverse each of these pointsin detail. It is sufficient for present purposes in my view to assess whether, in relyingon the information in the Parking Analysis Paper, the ultimate conclusion of theCommittee was, in the wording of Bryson v Three Foot Six Ltd, "so insupportable –so clearly untenable – as to amount to an error of law".112 As the Supreme Court said,this will be the case if "there is no evidence to support the determination"; "theevidence is inconsistent with and contradictory of the determination"; or "the true andonly reasonable conclusion contradicts the determination".113[160] With all this in mind, I need to say at the outset that I do not believe theCouncil's finding here that there would not be any adverse social or economic impacton businesses was so insupportable or untenable as to amount to an error of law. I amof the view that the Council's belief that sufficient parks would be available to meetexisting and anticipated demand for parks was an available determination given theevidence the Council had before it at the time of making the Decision.112 Bryson v Three Foot Six Ltd, above n 15, at [26].113 At [26].[161] On this aspect, the Council adduced evidence from its own independent expert,Mr David Smith, a transport planner. It is acknowledged by Mr Smith that there weresome issues with the methodology employed in the Paper. However, generallyMr Smith considered other criticisms of the analysis were unjustified, and he advisedthat the process the author of the Paper followed and documented was, overall,appropriate and best practice.114[162] In particular, Mr Smith accepted the Paper could have been improved by"ground-truthing", which refers to comparing the conclusions reached in the analysisto other periods as a cross-check to those conclusions. Nevertheless, Mr Smith hadsubsequently undertaken what is described as an "extensive 'back validation'" andwas apparently comfortable that the analysis was in what he described as "the rightballpark".115 Recalling the wording from Bryson v Three Foot Six, I consider thisshows that in no way is the evidence "inconsistent with and contradictory of thedetermination".116[163] Mr Smith has also advised the Court that the fact the data contained a periodwhen New Zealand was at COVID-19 Alert Level Two had only a "negligible" impacton the analysis.117[164] The Criticism can always be made of a Council in a situation such as thepresent that it did not send more people out to check and get more information. AsMr Whittington in his submissions suggests, "in a world in which costs of resourcingare irrelevant the Council would have employed an army of people to stand onThorndon Quay all day, every day, for months, collecting data manually, peerreviewing and cross-checking, and then 'ground-truthing' the outcome." This ofcourse plainly overstates what the applicant is suggesting here. Nevertheless, as I seeit, the point is well made. I accept that the steps taken by the author of the Paper herein relying on data gained from the sensors installed for this and other purposes, andconsequently the steps taken by the Council in relying on this analysis, were entirely114 Affidavit of David Smith at [5.8].115 At [5.12]–[5.19].116 Bryson v Three Foot Six Ltd, above n 15, at [26].117 Affidavit of Mr Smith at [5.20]–[5.31].reasonable and were proportionate to the Decision required in terms of the manner ofcompliance with ss 77 and 78 under s 79.[165] I note here too that in particular Waka Kotahi, in its 2020 audit report of theCouncil, had insisted that the Council "needs to act now to implement an interim safetymeasure for cyclists."118 As Waka Kotahi further commented in that report, in light ofwhat was seen as a dangerous situation for cyclists, it was "vital that Council prioritisesfirst on safety and second on convenience".119 In such circumstances, I am satisfiedthe Council took adequate steps to inform itself then of the dangers to cyclists as wellas the possible downstream effects of any change to the parking arrangement, which Inow address.[166] To the extent that a decision-maker might have made an error of fact by beinginadequately informed, the law is clear that the steps taken to be informed must bereasonable in the circumstances.120 This is to be seen within the context of s 79, whichmeans it is a matter for the local authority to determine in its discretion andproportionate to the significance of the decision.[167] Here, the Council it seems took a number of steps to inform itself of the facts.These included collecting a substantial amount of parking data, considering crash data,taking advice from experienced Council officers, and consulting with affected parties.I accept the Council's submission that in the circumstances, given the "medium" levelof significance of the Decision, this was adequate. While more might have beenexpected if the Decision had been a "significant" decision, I am satisfied the Counciladequately fulfilled its obligations here.[168] Moreover, due to consultation it undertook, the Council was well aware thatbusiness owners believed their businesses would be affected. This information wasbefore the Committee and represented part of the material the Committee can bepresumed to have taken into account in its decision-making. I am satisfied theCommittee members would have weighed up these views as part of their decision on118 2020 Audit Report, above n 5, at 19.119 At 19.120 Taiaroa, above n 111.how to vote in terms of the traffic resolution. The Council too subsequently declinedto reconsider its position even following a petition from the applicant based on thealleged effects the business owners claimed.[169] I accept the Council's submission that whether or not there would be sufficientparking available following the change to parallel parks was not a matter of objectivefact. It was, at root, an assumption. The nature of the Council exercise was that it wasattempting to predict a future unknowable. What the Council was required to do wasto form the best determination it could based on the information available to it at thetime.[170] As I see it, I am satisfied the Committee based that determination on itsunderstanding of current usage, and it was entitled to rely as it did on the informationbefore it as to this. While I accept there appear to have been certain issues with themethodology adopted for the analysis here, I am satisfied none of these amount to afinding that, in terms of the relevant tests, there was no evidence to support thedetermination, the evidence was inconsistent with and contradictory of thedetermination, or, in particular, that the true and only reasonable conclusioncontradicted the determination.121[171] Accordingly, I do not consider the Council proceeded on an incorrectassumption or material error of fact in assuming there would be no adverse social oreconomic impact from changing the car parks.Second alleged mistake of fact — comparative safety for cyclists of angled and parallelparks[172] The second mistake of fact alleged by the applicant is that the Councilmaterially (and wrongly) relied on the assumption that parallel parks werecomparatively safer for cyclists travelling along Thorndon Quay than the existingangled parks. As the Council described the situation in the Consultation Paper, underthe heading "Why we are proposing the change":• 121 Bryson v Three Foot Six Ltd, above n 15, at [26].• With the increase in people cycling along Thorndon Quay, the numberof injuries incidents relating to cyclists have increased over the lastfive years. A major contributor to incidents on Thorndon Quay relatesto conflicts between cyclists and motorists using the angled car parks• Changing the parking layout from angled to parallel will improvesafety for cyclists along this section of Thorndon Quay.[173] This assumption was clearly a material factor underpinning the Decision. Itwas relied on by the Committee in making its Decision. Indeed, the primary objectiveof the Council's proposal to change the parking arrangement on Thorndon Quay wasto improve the safety of cyclists travelling along the corridor.[174] However, the applicant says here the assumption that parallel parking is saferfor cyclists than angled parking is demonstrably incorrect. The applicant argues themost directly relevant empirical evidence available to the Committee at the time of itsDecision was inconclusive on this matter. On this, the applicant adduces evidencefrom its expert witness, Mr Ian Harrison, an economist. Mr Harrison has provided areport (the "Tailrisk" report) detailing statistical evidence of the relative safety ofangled and parallel parking, as well as an affidavit-in-reply responding to the evidenceof the Council's expert witness, Mr Paul Durdin. The applicant has also filed twoaffidavits from Mr Wanty, who expressly records that he is a road safety expert.Mr Wanty in his affidavits, however, is silent as to the comparative safety to cyclistsof angled and parallel parks.[175] The Council for its part points to an apparent dispute between the parties inrelation to how road safety is assessed. According to the respondent, each of theCouncil, Waka Kotahi, and the Council's independent expert, Mr Durdin, identify aclear safety flaw in the previous road configuration. The respondent suggests theapplicant "believes everyone is wrong based on the opinion of an economist" andstates the applicant's road safety expert is "pin-drop silent" on the safety issue.[176] In particular, the respondent objects to the evidence of Mr Harrison. First, Itake account that Mr Whittington for the Council argues that, for certain proceduralreasons relating to the manner in which Mr Harrison's evidence was admitted (theapplicant having neglected to file an affidavit-in-chief from Mr Harrison as it shouldhave done), the Council did not have an opportunity to brief an economist to determinewhether Mr Harrison's opinions are correct. I will not disregard Mr Harrison'sevidence, however, as Mr Whittington asks me to, but I do take account of thisparticular evidence bearing this in mind.[177] The more substantive and second point the respondent makes, in myestimation, is that in conjecturing about matters of road safety, Mr Harrison strays welloutside his area of expertise. In the "Tailrisk" report, Mr Harrison makes a number ofconclusions as to the comparative safety of angled and parallel parks in reliance onavailable statistical data. In his subsequent affidavit-in-reply, Mr Harrison expands onthe views expressed in the Tailrisk report by way of critique of Mr Durdin'sconclusions with regard to road safety.[178] I make no criticism of Mr Harrison's evidence as the applicant's economicexpert as it relates to economic perspectives. However, it must be acknowledged heis not a traffic or road safety expert. Accordingly, on questions of road safety, I putgreater stead in the evidence of the witnesses with experience and expertise in roadsafety, namely Mr Wanty for the applicant and Mr Durdin for the respondent.[179] At this point I recall that the applicant's expert on road safety, Mr Wanty,despite ample opportunity to do so, did not express any view on the issue whetherangled parks or parallel parks were safer for cyclists. The Council highlights what itdescribes as an "extraordinary situation", namely that even though the applicant's caseis based on a challenge to the view that Thorndon Quay was unsafe for cyclists, itsown road safety expert does not give any such opinion. The Council invites me todraw an adverse inference from this. It suggests that any road safety evidenceMr Wanty would have given would not have supported the TQC's case.122[180] I do not consider such an adverse inference is either necessary or warrantedhere. However, I accept that, as Mr Whittington for the Council somewhat tellinglypoints out in his submissions, "the [a]pplicant briefed reply evidence purporting to be122 As the respondent points out, this is known as the rule in Jones v Dunkel, after Jones v Dunkel(1959) 101 CLR 298, which was subsequently adopted in New Zealand in Perry Corp v IthacaCustodians Ltd [2004] 1 NZLR 731 (CA) at [144]–[155] as a principle of the law of evidenceauthorising the form of reasoning that evidence a party could be expected to have called wouldnot have helped that party's case (at [153]).road safety evidence from an economist, but failed to brief road safety evidence fromits existing road safety expert." On the question of safety, therefore, all evidencebefore the Court (apart from that of the applicant's economic expert) suggests theprevious layout of Thorndon Quay with its combination of angled parking andprovision for cycling was unsafe, and that parallel park arrangements are generallysafer for cyclists than angled parks.[181] Turning to that evidence, in particular I note in this respect the 2020 auditreport of Waka Kotahi I refer to above at [14]. This report from Waka Kotahi camefrom it as a central government agency tasked with ensuring road safety andundertaking an audit of the Wellington road network. I am satisfied its adviceconstitutes a reliable opinion. In an earlier 2015 audit report, Waka Kotahi hadidentified only three safety issues (a paucity which I understand to be significant), oneof which was the present issue, the safety of cyclists on Thorndon Quay.123 In the2020 audit report, Waka Kotahi was then even more directive. It stated:124At the last audit in 2015, we commented about the crashes on Thorndon[Quay] involving cyclists. On this audit, we observed that no recentimprovements had been made to improve cycle safety on Thorndon [Quay].Counsel commented that improvements are being looked at to improveThorndon [Quay], but these will be implemented as part of the "Let's GetWellington Moving" programme. This work programme is in its infancy withphysical work many years away. This is too long. Council needs to act nowto implement an interim safety measure for cyclists. The major conflict onThorndon [Quay] is the conflict between cyclists and cars exiting theperpendicular car parks. A simple solution is to revise the parking orientationto all parallel car parks to mitigate the conflict. It is vital that Councilprioritises first on safety and second on convenience in this situation.[182] The Committee clearly relied also on comments made to similar effect in theParking Analysis Paper referred to above at [18]. As the Paper stated:125The crash history indicates that cyclists are at particular risk at ThorndonQuay. Cyclists were involved in 25 percent of crashes and represent morethan half of serious injury crashes in the area The data indicate that the current parking configuration is likely the maincontributor to the large number of cycle crashes in the area. Of the 25 reported123 Waka Kotahi NZ Transport Agency Investment Audit Report: Monitoring Investment Performance(December 2015).124 2020 Audit Report, above n 5, at 19 (emphasis added). Waka Kotahi referred in its report to"Thorndon Road" but this was clearly meant to refer to Thorndon Quay.125 Parking Analysis Paper, above n 9, at 4–5 (emphasis added).crashes involving cyclists in the area, 20 were related to parking. Of the fourserious injuries involving cyclists, three related to parking. There are two maintypes of parking crashes: vehicles manoeuvring into or out of parking spacesand colliding with cyclists, and drivers opening car doors and hitting cyclists.Figure 5 shows that parking, especially angle parking, is a proportionallygreater factor in cycle crashes along Thorndon Quay than it is for vehicle vs.vehicle crashes or crashes involving motorcycles and mopeds.[183] Again I consider this is evidence which reasonably supports the ultimatedetermination of the Committee in relation to the comparative safety of parallel andangled parking. The applicant does raise an arguably relevant point that in order toget an accurate understanding of the risk of any particular cyclist experiencing anincident, it is necessary to account for the relative proportion of angled to parallelparks. It contends the Council's analysis was therefore wrong. In my view, however,the difference this makes to the overall analysis is negligible and the Committee wascognisant of this analytical limitation.[184] I note, moreover, that during the Committee's meeting on 24 June 2021 atwhich the Decision was made, one Councillor asked Mr Singh about "the quality ofour evidence about whether parallel parking is really safer than angle parking". MrSingh referred to the Austroads tool and a "large amount of data" collectedinternationally which had "basically determined that parallel parking is more safe thanangle parking". Given that the Council's overarching objective in this Decision wasincreasing safety for cyclists, the Committee's concerns were clearly satisfied. Formy part I am satisfied that was an available position for the Committee to take.[185] It is not the place of the Court here to make an assessment for itself as towhether parallel parking is safer for cyclists than angled. The question for the Courton review is whether the Council was entitled on the basis of the evidence before it tomake this assessment and ultimate conclusion.[186] I do not think this assumption was "demonstrably incorrect", as the applicantalleges. Rather, I am satisfied that the evidence the Committee had before itreasonably supported this conclusion.[187] The threshold for a successful finding that the decision-maker proceeded on anerror of fact is high. As noted, there will be an error of law on a material mistake offact where "there is no evidence to support the determination"; "the evidence isinconsistent with and contradictory of the determination"; or "the true and onlyreasonable conclusion contradicts the determination".126 I am of the view none ofthese wordings can realistically be said to accurately describe the Council's conclusionhere that parallel parks were comparatively safer for cyclists than angled parks. I amsatisfied that on the basis of the evidence described, there was evidence supporting theCouncil's determination that parallel parks were safer than angled parking, and indeedno evidence, apart from that of the Council's economic expert, to suggest the reverseis true.[188] I accept that the evidence of Mr Durdin and Mr Smith in support of the positionthat parallel parks are safer for cyclists than angled parks has been adduced after theCommittee made the Decision. The Council arguably might have done furtherresearch into the safety aspects of the proposed change, in terms of assessing theadvantages and disadvantages of the proposal under s 77. Nevertheless, I recognisehere that any such further research was entirely subject to the Council's discretion asto how it would comply with ss 77 and 78 under s 79, and that in a decision of mediumsignificance such as this, what the Council did in terms of informing itself as to thecomparative safety of different parking arrangements was sufficient.[189] I thus dismiss the applicant's argument that the Council, through its delegatethe Committee, proceeded on a material mistake of fact in this regard.[190] For the sake of completeness, I note my view that the Committee took intoaccount all relevant safety risks here. Any suggestion of safety risks due to an allegedincrease in "U-turns" on the roadway or difficulties for businesses unloading stock onThorndon Quay due to the changes is tangential, anecdotal and not information theCommittee had (nor necessarily could or should have had) before it at the time.126 Bryson v Three Foot Six Ltd, above n 15, at [26].Issue five: relief[191] The applicant seeks relief by way of declarations that the Decision wasunlawful and invalid, an order quashing the Decision and an order requiring theCouncil to return all car parks along Thorndon Quay to their former configuration.[192] The Council for its part accepts that in the event the Court finds a material errorhas been made, a declaration to that effect would be appropriate. However, theCouncil argues the other forms of relief sought would be futile because of otherchanges proposed by LGWM. In particular, the Council says that by the time the Courtcame to consider the application, the Council and the LGWM would have determinedthe future layout of Thorndon Quay. The applicant submitted this argument is wrongas it seeks to pre-empt decisions that the Council has yet to make.[193] At the hearing before me, counsel advised that since this proceedingcommenced, this has now occurred. As I understand the position, LGWM has nowdetermined the concept road design for Thorndon Quay/Hutt Road and has confirmedfunding for it. Construction is apparently expected to commence as early as March2023 and detailed design of the concept is now underway. Importantly for presentpurposes, the new road layout concept does not include any angled parking, but doesinclude on-street parallel parking.[194] In this decision, having found the Council did not err in any way, I am notrequired to deal with the issue of relief. While the Council's process could arguablyhave been better in certain respects as I have outlined above, I am satisfied none ofthese failures amounts to an error of law.[195] For completeness, however, I need to record that had I decided otherwise here,in any case I would have been hesitant to grant the full relief the applicant seeks.[196] In the ordinary course of events, where a decision-maker has erred in theexercise of public power, the claimant is entitled to relief.127 It is only in "exceptional"127 Ririnui v Landcorp Farming Ltd, above n 109, at [112] per Elias CJ and Arnold J; and Air NelsonLtd v Minister of Transport [2008] NZCA 26, [2008] NZAR 139 at [61].circumstances that the Court will decline relief and there must be "extremely strongreasons" to do so.128[197] I am of the view that had I found a material error of law on the part of theCouncil, a declaration to that effect by itself would have been appropriate relief in thepresent case. I would take this approach for a number of reasons.[198] First, the role of LGWM in the future layout of Thorndon Quay cannot beignored. At the outset, whatever decision the Council made was always going to beinterim pending the implementation of the Thorndon Quay/Hutt Road project beingundertaken by LGWM at the same time. It was as a response to the pressing issue ofcyclist safety that the Council proceeded with its own traffic resolution process, butthe final form of Thorndon Quay was always going to be that as determined throughthe LGWM process. As I have been advised, the current and foreseeable position isthat the plan for Thorndon Quay which has been fully approved and funded by allthree LGWM partners, and for which construction is scheduled to commence as earlyas March 2023, provides for parallel parking spaces only. In these circumstances anorder quashing the Decision and requiring the Council to return all car parks to theirformer configuration in my view would be largely futile.[199] Secondly, the safety of cyclists is at play. As I have outlined above, there hasbeen significant evidence at least to suggest that the former parking configuration wasunsafe for cyclists and the current configuration is a safer one. An obvious questionarises over whether, even if the Council had undertaken an improper process here, thesafety of cyclists should now be put at increased risk as a result.[200] Finally, though I put less weight in this as a factor, I note that any orderquashing the Council's Decision would cause administrative inconvenience and waste,including possible further consultation and data evaluation. Particularly incircumstances where LGWM has now decided on a final concept for Thorndon Quay,this would be unnecessary and duplicative.128 Air Nelson Ltd v Minister of Transport, above n 127, at [60], citing Berkeley v Secretary of Statefor the Environment [2001] 2 AC 603 (HL) at 616 per Lord Hoffmann.[201] Had the applicant been successful in these proceedings, a remedy would havebeen appropriate to vindicate the applicant for the Council's breach of the law. Of thatthere is no doubt.129 However, I am satisfied a declaration to that effect — incombination with costs as the successful party — would have been sufficientvindication to the successful applicant in all the circumstances here.Result[202] It will be apparent for all the reasons I have outlined above that none of thegrounds for review alleged by the applicant has been made out.[203] The application is dismissed.Costs[204] I heard no argument on costs. I see no reason why the Council, as thesuccessful party, should not be entitled to an order for costs and disbursements in theusual manner. However, I urge the parties and counsel to liaise amongst themselveswith a view to determining costs, failing which I will receive submissions(sequentially) from the parties (to be no more than five pages in length) and I willdetermine the issue of costs on the papers.Gendall JSolicitors:Robert Kirkness Barrister, Gibson Sheat and James Tocher Barrister for the ApplicantNick Whittington Barrister for the Respondent129 Attorney-General v Chapman [2011] NZSC 110, [2012] 1 NZLR 462 at [1].